Verdict for Merck in L.A. Vioxx trial

In the first Vioxx case to go to trial in California, a Los Angeles County jury cleared Merck & Co., maker of Vioxx, of liability for a Northridge man's heart attack. The jury concluded that Stewart Grossberg, a retired construction manager, failed to prove that the Vioxx was responsible for his heart problems.

This was the fifth win for Merck in eight Vioxx trials.

The plaintiff's loss in "a notoriously favorable jurisdiction [is] going to make the plaintiffs' lawyers lower their sights for settlement and discourage the appetite for trial," said David Berg, founding partner of a Houston law firm and author of "The Trial Lawyer: What It Takes to Win."

However, Grossberg's case was considered weak. Therefore, legal experts viewed the verdict as only a qualified victory for the nation's fourth-largest drug maker. Merck’s plaintiffs' lawyers vowed to continue the fight.

There are many cases against the maker of Vioxx to follow. Merck faces more than 16,000 suits nationwide.

Thomas Yoo, a lawyer and spokesman for Merck's trial team, said the verdict vindicated the company's position that it "acted appropriately in providing information to the medical, scientific and regulatory communities."

"We firmly believed that Vioxx was not the cause of this heart attack because the data does not support that infrequent, sporadic use of Vioxx contributes to heart attacks," Yoo said. "At the end of the day, the fact remains that the plaintiff was at high risk for a heart attack regardless of whether he was taking Vioxx."

Currently, Merck may have a winning trial record, but there have been a few plaintiffs who have been awarded about $300 million. The biggest share $253-- million -- went to Carol Ernst, a Texas woman who blamed Vioxx for the death of her tri-athlete husband from heart problems. Even if Merck's appeals fail in those cases, damage caps are expected to reduce future awards to less than $50 million.

Analysts have estimated that the company could pay as much as $50 billion in judgments, settlements and other litigation costs associated with Vioxx. Merck sold more than $9 billion worth of the drug before pulling it from the market in 2004 after a study found that it increased the risk of heart attacks.

The stock market is reacting to these verdicts. Merck stock rose 21 cents to $41.03 on Wednesday. The verdict was announced after the markets closed.

It followed a Merck win in July when a New Jersey jury blamed other risk factors for 68-year-old Elaine Doherty's heart attack.

Wednesday's win should reinforce the company's stated plan to take every case to trial, lawyers said.

In response to Merck’s recent wins, Peter Bicks, a New York corporate defense lawyer said, "The company's strategy of making the plaintiffs prove their case in court is paying off."

Grossberg, a Northridge resident, blamed Vioxx, which he took for arthritis pain, for a heart attack he suffered in 2001 at age 66 as well as subsequent medical problems. Like other plaintiffs, he alleged that, despite red flags that the drug could cause serious cardiovascular harm, Merck sought expedited government approval to sell Vioxx and designed a study to deceive the medical community about its safety.

Grossberg’s lawyers also argued that Merck documents showed that after its study confirmed Vioxx raised users' risk of heart problems, the company failed to warn patients and physicians and instead created an aggressive marketing campaign to downplay any concern.

Merck's lawyers contended that Grossberg's other medical problems, including atherosclerosis, existed before his use of Vioxx, and that he used the drug only intermittently.

After a five-week trial, it took the jury less than a day to decide that Vioxx did not cause Grossberg's heart attack. The jury also concluded that Merck was not negligent and did not conceal information.

Members of the jury said that they did not feel that the case against Merck was ever made and there was not sufficient evidence support that there was a connection between Vioxx and Grossberg’s heart attacks. Jury foreman Charles Sullenger said, "In the end it simply boiled down to the burden of proof was not met, in our opinion."

According to legal experts, the verdict has a negative effect for plaintiffs like Grossberg who used Vioxx sporadically or for a short time, and were in less-than-perfect health when they had a heart attack.

However, legal experts also said the verdict should not hurt the cases of once-fit plaintiffs who can demonstrate longer use of the drug. The company has not said how many of the suits involve long-term use.

Another Vioxx trial got underway this week in New Orleans in a suit brought by a 62-year-old former FBI agent.

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